Thursday, December 20, 2007

PubPat continues its confused ways

Not surprisingly, PubPat is backing the USPTO on the rules for continuing applications now being contested in district court. The PubPat press release spun the issue as PubPat

supporting new U.S. Patent Office (USPTO) rules that would curtail abusive behavior by patent applicants and improve patent quality.

IPBiz notes no mention of "reducing backlog," even in a more detailed discussion:

"The public interest overwhelmingly supports the USPTO's Final Rules for at least two significant reasons," the brief said. "First, they will enable the USPTO to curtail abuses of the patent application process made by those patent applicants who seek to pervert the system to gain an unfair advantage. Second, the Final Rules will help the USPTO improve patent quality, which is a critical issue for ensuring the patent system benefits the American public."

The miscreants spouting this nonsense are:

The Public Patent Foundation ("PUBPAT"), Computer & Communications Industry Association ("CCIA"), AARP, Consumer Federation of America ("CFA"), Essential Action, Foundation for Taxpayer and Consumer Rights ("FTCR"), Initiative for Medicines, Access & Knowledge ("I-MAK"), Knowledge Ecology International ("KEI"), Prescription Access Litigation ("PAL"), Public Knowledge ("PK"), Research on Innovation ("ROI"), and Software Freedom Law Center ("SFLC").

You may recall John Simpson of FTCR who told California folks how patent pools led to the production of US fighter planes in World War I. As pointed out in the IPBiz post on patent thickets and the Wright Brothers:

In an IPBiz post on May 28, there was discussion of a CIRM document from an April 27 meeting of CIRM's IP Task Force: There was a conclusion about the U.S. aviation patent pool in World War I: "and that's what led to fighter planes being built for World War I."

IPBiz noted that there were no U.S. - built fighter planes ever used in World War I. For example, US ace Eddie Rickenbacker flew Nieuport 28 and SPAD XIII aircraft (French).

It's likely that Simpson knows even less about continuing applications than he did about patent pools, but ignorance doesn't seem to slow him down.

One finds in the press release the text:

Under current rules, which allow unlimited continuations, USPTO examiners who have repeated rejected an application often face an endless stream of continuation applications that "may well succeed in 'wearing down the examiner,' so that the applicant obtains a broad patent not because he deserves one, but because the examiner has neither the incentive nor will to hold out any longer," according to professor Mark A. Lemley of Stanford Law School and Kimberly A. Moore, now a Circuit Judge on the U.S. Court of Appeals for the Federal Circuit.

Of course, the number of applications filed two, or more times, is about 5%, so the idea of an "endless stream" might be questioned.

The press release had the usual ad hominem attack on patent attorneys: The legal papers, available at, also noted that while briefs filed opposing the new rules claimed they were acting in the "public interest," in fact they represented the narrow interests of patent holders and patent attorneys.

The press release did not address the issue of whether or not the USPTO has the legal authority to issue rules such as this. The press release did not attempt to quantify the alleged abuses in the patent application process. The press release did not explain how "patent quality" would be improved if the rules were implemented.

In passing, given that the present rules would allow 2 cons and 1 RCE, the number of applications that would be affected is far less than 5%.


The 271Blog discussed on 26 Dec. an aspect of the PubPat brief:

Interestingly, the brief suggests that patent applicants and practitioners are not entirely within the purview of the "public interest":

[A]rguments regarding the public interest made by patent holders and patent attorneys should be carefully scrutinized, because they are, in fact, the special interests that benefit from the patent system and what benefits them personally may not actually benefit the public interest.

IPBiz notes that PubPat's attack on the motivations of patent attorneys is merely a re-hash of Jaffe and Lerner's similar ad hominem arguments. From IPFrontline:

Jaffe and Lerner had written unfavorably of patent attorneys in the Harvard Business Review in November 2004; from the talk of Lawrence B. Ebert in Stevenson, Washington before WSPLA/OPLA Joint Conference in 2005: Adam B. Jaffe and Josh Lerner have stated that "Increasingly, the firm with best lawyers or the greatest willingness to risk litigation wins the innovation wars --rather than the company with the brightest scientists or the most original, valuable ideas."
Jaffe and Lerner further assert "Whatever the solutions, when issues of US patent policy are considered by the courts, the Congress, and the executive branch, you can be sure that the opinions of patent lawyers and patent holders will be heard. While their arguments will often be couched in terms of the public interest, at bottom their focus will be on improving their own profits and livelihoods, not on designing a patent system to foster the overall rate of innovation."

Ironically, Jaffe and Lerner, while demonizing patent attorneys, propose "reforms" such as opposition proceedings, which would benefit patent attorneys, even though there are patent lawyers who have vocally opposed reforms creating opposition proceedings. Thus, Jaffe and Lerner do not mention the publications by Joseph Hosteny such as "Post-Grant Opposition: Building on Sand," Intellectual Property Today [IPT], pp. 8-9 (August 2004) or What Now? Post-Grant Oppositions and the Proposed Budget, IPT pp. 8-9 (March 2005).


A December 27 post on PatentHawk contains the following comment:

What is really "laughable" is the Public Patent Foundation Brief. Very little mention of relevant case law, just Lemley & Moore, Lemley & Moore, and (more) Lemley & Moore. May be Cacheris will simply avoid reading this woeful Brief, and move on. But if he does read this Brief, hopefully he'll bury it quickly and pay more attention to Amicus Briefs, like the one recently submitted by IPO which beautifully flays 1.78(f)(2) for what it is, a supposed "procedural rule" which conflicts with case law and the statutes.

Elsewhere, PatentHawk wrote:

Call the "unfair advantage" of patents perverted is laughable. A patent is a reward for invention that grants an advantage; calling it unfair is nothing but pejorative by those against patents holistically.

That the continuation rules improve patent quality is ludicrous.

By helping the USPTO reduce wasted effort on unwarranted abuse of the patent application process, the Final Rules will free up staff and resources that can be used to improve patent quality, which is one of the most important issues for ensuring the patent system advances the public interest.

Patent attorneys have not formed a cabal to thwart patent reform.


Post a Comment

<< Home